State v. Phillips

1 Thompson 51

Opinion

McKiNNEY, J.,

delivered the opinion of the court, stating, in substance: — That the language of the aet of assembly upon which the above indictment was predicated is general and sufficiently comprehensive to include dogs. It will not do therefore to give a literal construction to the aet. For such a construction would make it malicious mischief to kill a dog, or a cat, or any other beast in which may be held a qualified property, a thing which the Legislature never could have intended.

The Legislature intended in the passage of the above aet, to protect those well known domestic animals used for food, labor and other domestic purposes, in which the owners by the eommon law had an absolute property; and not such as are only the sublets of a qualified property by the same law, and such as are kept for pleasure and amusement. The dog was not at common law the subject of larceny, nor was it so in England until the passage of a comparatively reeent statute.

Looking to the intention of the Legislature, the court was, therefore, constrained to Ifold that to kill the dog of another is not an aet of malieious mischief punishable under the act of 1803.

The judgment of the circuit eourt was therefore affirmed.